The U.S. Supreme Court’s vacancy in a contested presidential election year has ignited a political firestorm over who will replace the late Justice Antonin Scalia, possibly tipping the ideological balance of the country’s high court.
Last month, President Obama nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit, for the position. The Republican-held Senate says it will not consider the nomination as Democrats increasingly seek to make their refusal a campaign issue for vulnerable senators up for re-election.
Ryan Owens, a professor of political science and an honorary fellow for the Institute for Legal Studies at the University of Wisconsin-Madison studies the U.S. Supreme Court. He recently spoke with the Cap Times and offered insights on the legacy of the late Justice Antonin Scalia and put the current battle over the court’s open spot into judicial and political context.
What’s been Justice Antonin Scalia’s legacy on judicial politics on the U.S. Supreme Court?
If you look at Scalia’s impact on the court, one of the things he was successful in doing was getting attorneys to talk less about legislative history and more about the text of statutes or the text of the Constitution. Those are the things people had been doing quite regularly before he got on the court, previous drafts of legislation, things like that to figure out what Congress meant when it passed a bill.
His argument was, you can’t really look at that stuff, you can’t look at comments made by people in committee or comments made by drafters behind the scenes because those aren’t things that get voted on. He was by and large successful in getting attorneys to not do that sort of thing. His absence on the court, I’m not sure if it means attorneys return to that sort of thing. I suspect it will be a little while before they do that, but nevertheless, he did have that impact.
What are the effects of the vacancy on the court right now?
The effects of the vacancy now are pretty significant though not unprecedented. So obviously there’s a 4-4- split ideologically on the court right now; we’re likely going to see a number of decisions get decided or potentially remanded to the lower courts. We’re not going to see the same set of landmark decisions we expected at the beginning of this term.
What happens when there is a 4-4 tie on a case?
Basically, (a tie) affirms the lower courts’ decision. It doesn’t set any precedent on a national level. It has binding effect on the parties, so it does have an influence on the parties. It has what we call “res judicata” effect, meaning that those same parties can’t come back filing that same lawsuit again. For the rest of us, it's (a tied decision), it means nothing. And justices don’t really like this, that’s why they are loathe to recuse themselves from cases unless they absolutely have to because they want to avoid this.
What notable cases is the court considering now where a 4-4 tie might occur?
The court recently heard oral arguments in the Sisters of the Poor case, and this was an Obamacare case dealing with the contraceptive mandate for religious institutions that aren’t deemed to be churches. They don’t want to have to provide contraceptive services to their employees and they object to it on First Amendment grounds. What the court did was, in sort of a unique move, they asked the parties to provide additional briefing by the middle of April. Typically if the court asks for additional briefing, it usually occurs before oral arguments, but here it occurred after oral arguments. That’s really unusual. The point is what we saw there is the court seemingly going out of its way to find additional information that might help it get around a 4-4 split.
Is the Senate obstructing the process? Is their rationale that they need to “let the American people decide” valid?
With these things you have to split them off in political perspective and legal perspectives. From a constitutional perspective, the Senate is well within its right to say, "We’re not going to act on this." There’s no question about that. So I think we need to set that question aside, that they’re not fulfilling their duty, they’re not being constitutional. The Constitution says the Senate provides its advice and consent and they’re doing that right now; they’re saying, “We don’t consent.” Of course that’s wholly separate from the question of, do we want this behavior to occur?
Politically, historically, there are some precedents for this, but this really is a unique situation. It is, without question, politically motivated by both parties. In 1991, the Democrats, Senator (Joe) Biden, when he chaired the Judiciary Committee, he held up many judicial nominations from George H.W. Bush on the grounds that this is the final year in office, we’re going to have an election pretty soon and my party might win the White House. He did that with all of Bush’s lower court nominations at that point.
Of course the Republicans were in the same position then as the Democrats are in now. There wasn’t an actual vacancy the Supreme Court in 1992, so it never came to fruition, but the threats were there. And I think it just highlights the fact that this is all about whose ox is gored. The arguments both sides are making here, they are somewhat valid, they are also very hypocritical.
It’s all partisanship. It’s not a common thing for a vacancy to occur in a president’s last year in office, especially in recent years. Vacancies on the Supreme Court in a president’s final year in office, roughly June or July, are pretty much off limits. Once that time period hits, everybody knows we’re just going to wait this out at this point. There are many Democrats and Republicans on record having said that.
How does Merrick Garland stack up as a choice? Was it a politically manipulative move by Obama?
In terms of qualifications, Merrick Garland is well qualified. I don’t think there’s any dispute about that. In terms of the politics of it, I’m surprised the President picked him as opposed to somebody else. I think the probability of getting this thing through is small. The President would have politically benefited more from selecting someone who would have alienated more people, would have motivated more people at the polls.
One thing that’s unusual about the Merrick Garland nomination is his age. He’s 63. Since 1937, there have only been two justices nominated that were older than him. Politically, maybe the President was thinking this would ameliorate things. Maybe Senate Republicans would be less worked up from a political standpoint. This is not the kind of nomination that liberals want to see and it’s not the kind of nomination Republicans are going to get on board with.
What are the chances the U.S. Supreme Court will take Wisconsin’s John Doe case that Milwaukee County District Attorney John Chisholm is pursuing?
I have not followed the John Doe that closely. But a few of the things they really target is conflict among the lower courts, different circuit, different state courts. If they differ over the same provision of federal law, then justices will step in and try to clarify what the law means.
If this is something that’s relatively narrow, and only affects Wisconsin, the court is unlikely to hear it. The courts are more likely to hear cases that are really highly salient or when there are lots of interest groups filing briefs either in support of or in opposition to the court reviewing a case. The court’s more likely to review if they have the ability to impact substantial portions of the law.
I’m not sure if I see those things being triggered in this case. One thing we have noticed in the Supreme Court over the last couple of terms is a growing discomfort with prosecutorial discretion and the kinds of things prosecutors are charging people with. It’s possible that this is something that gets framed within that.
How legitimate are criticisms that the Wisconsin Supreme Court and the U.S. Supreme Court have gotten too mired in partisan politics?
I think people have a tendency to flip out anytime politics comes up in court matters. To be clear, we want courts to be independent, but there’s also a strong argument to be made that they want them to be somewhat accountable to the public. There are courts that are much more political than (Wisconsin’s). In terms of just the overall quality, there doesn’t seem to be a huge difference among the various ways we select and retain judges.